I respectfully dissent.
The majority have framed the issue: Does the “Fresno rule” requiring that plea bargains be presented to the court no later than the readiness conference take precedence over appellant’s right to have the court consider the bargain on its merits? In the present case, the rejection of the bargain because of its untimeliness under the local rule deprived appellant of the possibility of receiving up to one year county jail time rather than three years in the state prison.
As I shall explain, Penal Code section 1192.5 and the California cases construing the statute give appellant the right to have the bargain considered by the court. The Fresno rule must yield to this statutory right. Furthermore, the enforcement of the rule denied appellant the equal protection of the laws as required by the 14th Amendment to the United States Constitution and the California Constitution (arts. IV, § 16; I, §§ 11, 21).
Before explaining why appellant was entitled to have his “untimely” plea considered by the trial court, I wish to make several preliminary comments to place the matter in context: First, the judgment could possibly be affirmed if the record showed the presiding judge had been informed of the fact the gun had been recovered by the prosecutor and that appellant had a prior record of violent crime involving the use of handguns. Under those circumstances, it could be said the trial court considered the bargain in the light of the circumstances of the case and exercised its discretion in rejecting it. Nothing in Penal Code section 1192.5 as I read it compels a trial court to approve a proposed bargain even conditionally. Unfortunately, as the majority opinion acknowledges, the record shows that on July 16 the presiding judge rejected the bargain out of hand because of its untimeliness, and on July 20 the trial judge rejected the bargain solely because he did not wish to countermand the presiding judge’s order. Neither judge exercised his discretion to reject the plea on its merits as required by Penal Code section 1192.5.
Second, despite appellant’s prior record and the recovery of the gun, the law does not permit a reviewing court to find harmless error where a trial court failed to exercise the discretion vested in it by statute. (The failure to exercise required judicial discretion is an abuse of discretion.) We cannot say as a matter of law that no rational judge could find that one year in the county jail was not sufficient punishment for appellant in this case.
Third, Proposition 8, the so-called “victim’s bill of rights” approved by the electorate on June 8, 1982, has no bearing on this case. Violation of Penal Code *589section 12021, ex-felon in possession of a handgun, is not a “serious felony” as defined in the initiative prohibiting plea bargaining.1
The Statutory Right to Plea Bargain
The California Legislature and the courts of this state have consistently approved and encouraged plea bargaining. (Pen. Code, § 1192.5; People v. Hill (1974) 12 Cal.3d 731, 768 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on another point in People v. DeVaughn (1977) 18 Cal.3d 889 [135 Cal.Rptr. 786, 558 P.2d 872]; People v. West (1970) 3 Cal.3d 595, 604-611 [91 Cal.Rptr. 385, 477 P.2d 409]; People v. Smith (1971) 22 Cal.App.3d 25, 30 [99 Cal.Rptr. 171]; see also Brady v. United States (1970) 397 U.S. 742 [25 L.Ed.2d 747, 90 S.Ct. 1463].) As stated in People v. West, supra, at page 604: “Plea bargaining has become an accepted practice in American criminal procedure, ‘an integral part of the administration of justice in the United States’ [citation], ‘essential to the expeditious and fair administration of justice.’ [Citation.] ‘The great majority of criminal cases are disposed of by pleas of guilty, and a substantial number of these pleas are the result of prior dealings between the prosecutor and the defendant or his attorney.’ [Citation.]
“Both the state and the defendant may profit from a plea bargain. The benefit to the defendant from a lessened punishment does not need elaboration; the benefit to the state lies in the savings and cost of trial, the increased efficiency of the procedure, and the further flexibility of the criminal process. Numerous courts, commissions, and writers have recognized that the plea bargain has become indispensable to the efficient administration of criminal justice. Professor Newman, in his study of plea bargaining, notes that ‘A steady flow of guilty pleas and the corresponding avoidance of the time, expense, and uncertainty of trials is important to the smooth functioning of most criminal courts. . . . Plea negotiation, with bargains duly honored, is a device necessary to administration if a steady flow of guilty pleas is to be maintained. ’ ” (Fn. omitted.)
Penal Code section 1192.5 and the cases construing the statute force me to conclude that regardless of when a plea bargain is presented to a court, the court must exercise its discretion by considering the bargain in the light of the substantive facts of the case; it may not reject the bargain out of hand solely because of the tardiness of its presentation under a local rule. As stated in People v. Smith, supra, 22 Cal.App.3d 25 at page 30: “The entire thrust of the language of section 1192.5 calls for the trial court to recognize the law as so ex*590pressed therein. Although it is within the discretion of the court to approve or reject the proffered offer, the court may not arbitrarily refuse to consider the offer. ...” Nothing is more arbitrary than depriving a defendant of the right to plead to a lesser punishment because of a local readiness conference deadline rule, particularly when the prosecutor did not make the offer until the eve of trial.
In People v. Hill, supra, 12 Cal.3d at page 768, our Supreme Court states: “. . . only the most compelling reasons can justify any interference, however slight, with an accused’s prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty.” (First italics added; second italics original.) Although the quoted language was made in the context of deciding whether the defendant’s plea should be set aside because the trial court erred in failing to suppress evidence, the principle that there should be no interference with the defendant’s right to plead guilty absent compelling reasons means that in the absence of proof of the most persuasive circumstances the existence of which is difficult to comprehend, the trial court must consider the bargain whenever it is presented. “Compelling reasons” as used in People v. Hill, supra, means something more than administrative convenience to the court and other litigants.2 Too much is at stake, “including the loss of [the defendant’s] liberty and even death.” (Ibid.)
The fallacy of the majority opinion is that it exalts an administrative rule ostensibly designed to expedite trials over a defendant’s statutory right to seek a lesser punishment with the prosecutor’s consent—with potentially disastrous consequences to the defendant. This is not a battle between the People and the defendant since the People have agreed to the bargain—rather it is conflict between a judicial desire for administrative efficiency and a defendant’s right to have the bargain considered by the court. The defendant’s right should prevail.
The Standards of Judicial Administration (§ 10(a)(7) enacted by the Judicial Council in 1972) constitute only policy guidelines “recommended” to the trial courts as a means to insure the prompt disposition of criminal cases. The standards are not court rules. The standards cannot override the statutory and case law giving a defendant the right to plead to a particular disposition of his case provided the prosecutor and the court approve the disposition. The Judicial *591Council has no authority to promulgate rules for court administration which conflict with a statute. (Cal. Const., art. VI, § 6.) And, of course, local rules may not be adopted which conflict with statute or case law. (Gov. Code, § 68070.)
The federal authority cited by the majority is not on point. The language in North Carolina v. Alford (1970) 400 U.S. at page 39 [27 L.Ed.2d 162, 172, 91 S.Ct. 160] that “[t]he States . . . may prohibit the practice of accepting pleas to lesser included offenses under any circumstances” was written in the course of deciding whether the defendant should be permitted to withdraw a negotiated plea to second degree murder because of asserted coercion resulting from the threat of the death penalty if he had gone to trial. The court of appeals had found that the defendant’s guilty plea was involuntary because it was motivated principally by fear of the death penalty. The Supreme Court merely held the trial judge did not commit constitutional error in accepting defendant’s guilty plea. I would view the quoted language as dicta in relation to the question before us. Also, the Supreme Court’s footnote statement (400 U.S. at p. 38, fn. 11 [27 L.Ed.2d at p. 172]) to the effect that a defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the states may by statute or otherwise confer such a right, is not germane to the question before us. The issue is not whether appellant had the constitutional right to have his guilty plea accepted by the court but rather whether under the California statute (Pen. Code, § 1192.5) and the California cases interpreting the statute he had the right to have the trial court at least consider the plea bargain before rejecting it.
United States v. Stamey (4th Cir. 1978) 569 F.2d 805 and United States v. Ellis (5th Cir. 1977) 547 F.2d 863, although pertinent under rule 11(e) of the Federal Rules of Criminal Procedure (18 U.S.C.), constitute no authority under the California statutory scheme for plea bargains. (Pen. Code, § 1192.5.)
Equal Protection Denial
The enforcement of the Fresno County rule deprived appellant of the equal protection of the law as required by the 14th Amendment to the federal Constitution. As the majority opinion acknowledges, the rule does not exist in all of the counties of our state and in those counties where it does exist, the judges often find it expedient to take pleas “at any time.” Thus, appellant was deprived of the right that other defendants in identical circumstances have to present the bargain to the court on the eve of trial. Appellant, having been charged and tried in Fresno County, was deprived of the very right that other similarly situated defendants have in other counties.
*592Judicial action constitutes state action for 14th Amendment purposes (Shelley v. Kraemer (1948) 334 U.S. 1, 14 [92 L.Ed. 1161, 1181, 68 S.Ct. 836, 842, 3 A.L.R.3d 441]; see also 13 Cal.Jur.3d, Constitutional Law, § 306, p. 564). The Fresno rule has the same effect as would a state statute prohibiting or restricting the right to plea bargain in a particular county. Such a statute would also violate the state Constitution which limits the Legislature’s power to pass special or local laws. (Cal. Const., art. IV, § 16; 13 Cal.Jur.3d, Constitutional Law, § 308, p. 569 et seq.) Only if the state should enact legislation requiring that all plea bargains throughout the state be presented no later than the readiness conference would there be uniformity in the law.
Appellant’s loss of the possibility of being sentenced to one year in county jail rather than three years in the state prison involves a fundamental right of liberty which is entitled to constitutional protection. For equal protection analysis, the burden is upon the state to prove a compelling state interest for the disparity in treatment of similarly situated defendants. I find no compelling state interest in requiring felony defendants in Fresno County to make their pleas no later than two weeks before trial when similar defendants in other counties of our state may offer their plea at any time before trial. The issue is not whether the state may show a compelling interest to expedite trials but whether there is a compelling interest justifying the treatment of defendants in different counties in different ways.
Again, the majority’s reference to the disparate rules governing plea bargaining in the federal courts is not germane for several reasons. First, there is no equal protection clause applicable to the federal government; only when the discrimination rises to the level of a due process denial does the Constitution limit the power of the federal courts (5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 335, p. 3629).
Second, we are concerned in the present case with the question whether identically situated defendants are treated equally under California law once a plea bargain has been presented to the court. The majority’s reliance on United States v. Jackson, supra, 563 F.2d 1145 is misplaced. Jackson holds that under rule 11(e) of the Federal Rules of Criminal Procedure (18 U.S.C.) federal judges are not required to consider a plea bargain at all. “. . . each individual judge is free to decide whether and to what degree he will entertain plea bargains.” (563 F.2d at p. 1148.) No such right is given to state judges under California law, and even if it did I suggest that such a statute would still violate equal protection.
Finally, the majority has made no attempt to demonstrate that the fundamental right to liberty is not involved nor have they argued that appellant is not similarly situated to defendants outside of Fresno County. The fact one *593codefendant may receive immunity or a lesser sentence through plea bargaining is immaterial to the issue of equal protection.
I would reverse the judgment and remand the matter to the trial court with directions to consider appellant’s plea bargain on its merits.
Appellant’s petition for a hearing by the Supreme Court was denied March 23, 1983. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.
Penal Code section 12021 is a hybrid crime “punishable by imprisonment in the state prison, or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both.”
We should judicially note the fact that presiding judges in metropolitan courts such as Fresno County, trail cases on the dates set for trial for one, two, three days or longer so that if a last minute plea is entered, a trailing case may be assigned into a department that would otherwise be occupied by a criminal trial. Sound arguments can be made that strict enforcement of a rule requiring plea bargains be presented no later than the trial confirmation hearing—in this case ¿most two weeks before the original trial date and seventeen days before the actual trial date—is counterproductive to the prompt disposition of other cases. Cases are tried that otherwise would be settled before trial. The majority’s reference to the “unpleasant judicial task” of excusing unused jurors when expected pleas do not materialize is totally redundant to a defendant’s right to have his plea considered by the trial court.